3 Steps of the Divorce Process
This article assumes you are working with lawyers in either a collaborative or litigious divorce process. Mediation is not discussed here, but is the cheapest and can be best option for lots of divorcing couples.
3 Steps of the Divorce Process
Along with Pitfalls & Questions
I obtained my divorce in 2009, finalizing a process that started in 2007.
It was initiated by my ex, who was having an affair with a woman at his business.
While we didn't have a heated battle about much of anything, the entire divorce process felt long and grueling, like bending your knee with a deep dry scab that never quite healed.
During my divorce, I followed all that my attorney advised - while juggling my infant son, looking for a new job and new home.
I never set foot into the courtroom.
To get things done, I agreed to whatever my lawyer suggested... given that by the time the second year of our divorce rolled around, I was paying all my own attorney's fees and just wanted to be done with it.
It wasn't until I was forced to return to court for child support modification, that I learned a whole helluva lot about the divorce process.
I share that with you here hoping that you may save some time, money, aggravation.... and hair, along with emotional eating lbs, in your own divorce.
Heads up, despite both Judges that I've met asking me when I'm going to law school, I do not have any legal training.
I try to stay away from legal terminology, but can't help myself given the technical nature of divorce documents.
Please do your own research.
Please consult an attorney, actually several attorneys, before deciding how and when to proceed with a separation or divorce.
Please consider if you need other professionals, financial or otherwise, to assist you - and then interview and hire them as well.
I don't want to simplify a process that takes an average of 12-24 months and costs between $15,000-$25,000, but divorce really involves 3 steps:
Divorce is not a decision that most people make lightly or quickly. It's a slow trickle at first that swirls up into an emotional storm.
Should you stay or go? Or fight for the other person to stay?
Never was anything so true - an ounce of prevention is worth a pound of cure.
Once you've started down the slippery slope that slides towards divorce, you're in crisis and must act swiftly.
So if you're asking yourself the "stay or go" question, you need to wake yourself and your partner to the storm.
My belief is that you loved this person enough to marry them, at some point, so you owe it to yourself, them, and definitely your children (if you have children) to try and make it work.
Therapy is a very common, sometimes helpful strategy, to mend your relationship.
We tried therapy for our marriage, albeit a handful of sessions.
I've had friends try marital therapy without marital success (although most of them have personally grown and transformed for the positive).
In fact, statistics are often thrown around that despite marital therapy, a good percentage of troubled marriages end in divorce.1
However, it comes down to this - if you don't have kids, divorce can be simpler and swifter and you can act with only your own best interests.
If you have kids, well then things get a lot more complicated.
Even if you might feel that your marriage has gone too far to be saved, and divorce is the only option - there's always some hope.
In fact, if you can do it, reinvigorating your relationship can strengthen your bonds - between you and your partner, and your children as well.
However if a relationship is abusive or violent, there is never a reason to stay and exiting that situation ASAP is an effing must.
Also, if you think it'll be easier once you're divorced, think again - divorce brings out the ugly, it's difficult and tedious, forces you to jump through emotional hoops to deal with your partner in co-parenting, is expensive, feels like a salted wound....all of the above.
You're basically going to work your ass off to get your divorce and fell whole again - so why not work your ass off as a family - IMO the rewards can be great.
I know I'll take some flack for this, women who divorce, more often that the men, take a financial hit in their standard of living.
In fact, women are more likely than men to live in poverty after divorce.2
Just know whatever route you choose, it will be HARD work.
Ok, you've decided you're done, or your partner has.
Should I hire a lawyer for my divorce or can I do it myself?
Ugh - that's a tough question.
More than getting screwed by your ex, I'm a big fan of not getting screwed by your attorney.
During my divorce I used two attorneys, starting with a more expensive one and sliding down to the cheaper one over the course of two years.
During my child support modification case, I worked Pro Se (without a lawyer), then I graduated to unbundled legal services and then up to an attorney.
So I know the gamut.
A DIY divorce is possible if:
- You have been married for a relatively short period of time
- you don't have children or many assets and marital debts
- your soon-to-be-ex is without a divorce lawyer
- both of you can agree to who gets/does what
If you do DIY divorce, you can use any number of paid or online divorce paper services.
Also, check your state for resources on what papers you need.
If your divorce is more complicated, and somewhat contested, than this, you can try either unbundled services or hiring a great divorce lawyer.
What if I can't afford a divorce lawyer?
- Some online divorce paper services, will let you speak to attorney's at a reduced rate.
- You should also see if you qualify for legal aid in your state.
- In some cases as well, your partner can be required to pay your legal fees or the legal fees taken from the marital estate.
- If none of the above work for you, you may also be able to find an attorney who will work with you delivering unbundled legal services*, or limited scope legal services.
* Unbundled legal services mean the divorce lawyer works with you to draft certain divorce papers or represent you in court on a limited scoped.
What I liked about this was that I was able to get professionally prepared documents and representation at one of my hearings without giving a retainer or letting my legal fees get out of control.
I highly recommend this approach if your case is more complex than a DIY case and your partner/soon to be ex is represented by an attorney, but feel you cannot afford one.
I also prefer this to the option of hiring a paralegal to fill out divorce papers.
Paralegals are not trained to give legal advice and they are not necessarily going to spot or alert you to any legal issues you may have missed.
And if you use a lawyer via unbundled services, you can do a lot of the legwork yourself and then have your attorney review everything.
One final note on this approach, do not share an attorney with your ex. You really want someone who is able to see your situation on it's own, versus just seeing the dissolution of the relationship.
How do I find a good divorce attorney?
A good divorce lawyer is PARAMOUNT to a good divorce!
Over the course of my initial divorce and post decree child support modification, I met with, worked with, and observed on the other side 15 lawyers.
Here's my process:
1. Firstly, you should identify a handful of lawyers from:
- Recommendations of friends and co-workers
- Women's groups
- Legal aid or Bar Association hotline
- Other lawyers you know
- Observing the Family Courts. Go and watch your Judge/courtroom for an hour or two and then approach the attorneys that seem to get positive responses from the Judge (or whatever your criteria)
- Online (read their website, read reviews, search their name and "lawyer" "attorney" and read what comes up...)
Notice that most of my recommendations are offline.
While you can find a great lawyer online, my first course of action is personal recommendations.
2. Set up "initial consultations" with 3-5 of them. (Complimentary)
3. Prepare your presentation - download our free divorce organizer.
Organize all your documents and 'story' in a standardized presentation.
4. Meet with each lawyer and ask the same set of questions - and write their answers. (Of course, you'll come up with other questions as you go through the process, but keep things as uniform as possible).
Note: If things have heated to the point where your partner is pushing a hearing down on you, you can go to court and request 28 days or more, to retain counsel. Don't hire someone in a state of panic.
5. Once you've met all your contenders sift through all your notes on their responses and approaches.
6. And if you have time, I highly recommend watching your top 1-2 in action in court. Ask them for some court dates and observe them.
Why do I recommend you watch your divorce lawyer in court before hiring them?
Once you commit to a lawyer, you don't want to have to go through the process again unless you absolutely must.
But more importantly, watching them on someone elses case, someone to whom you are not emotionally connected, you can see a more clear picture.
- Does the Judge respond to them favorably?
- Does the lawyer seem to be easily engage in conflict or not?
- Do they have their shit together? (Yeah, this one seems obvious, but isn't. I saw my ex's attorney show up to court unprepared several times - so he wasted court time and our money on his B.S. And this is something you don't see until you're in it.)
- Are they a bulldog lawyer or not? And do you need a bulldog? ( I would almost argue that you don't want a big flashy loudmouth because Judge's see this everyday and know, for the most part, when they are being manipulated.)
- What do your instincts say?
7. Hire and retain your chosen divorce lawyer.
Do I need a separation agreement or can I file for divorce?
If you are living separately and apart - YES!
You will most definitely want to have a separation agreement in place.
A separation agreement is a legally binding document that lists out all the details about: the division of assets and debt, alimony/spousal support, child support and visitation.
It also protects you from debts that your partner may incur during that time.
Nothing worse than being on the line for credit card expenses spent on the girlfriend. UGH
An additional benefit of a separation agreement, is that it hashes out details that you will need to hash out in the divorce regardless.
Note: Some couples live in perpetual separation for a variety of reasons, most including financial.3
What is the legal process of divorce?
Petitioning the Family Courts for Divorce
One party, through an attorney, or on their own, writes up the basic grounds for why they are seeking a divorce and what they are seeking moving forwards.
Once it's filed in the appropriate county, it must be served on the other party.
This means they must sign off on receipt.
You can serve the party or their attorney.
If the other side refuses service and acceptance of the documents, you may need to hire a professional process server.
If this is the case, do not do this yourself, as there is a very fine line into harrassment.
Once the other party accepts, this starts the state's waiting period clock officially, and also bars each party from selling assets, removing the children out of state... (check your state resources for exact details).
The served party, then has a certain amount of time, where they will need to file a response to the petition.
In that response, they agree or disagree with the grounds and other details.
Note: A friend's spouse initially filed his divorce petition accusing her of mental abuse. I can only guess it was because he did not want to wait the standard waiting period, he had his girlfriend's home he was running to. She did not agree to that, and eventually got to a no fault divorce. Do not agree to untruths. These things can and will come back to haunt you.
If the divorce is contested or their isn't a Separation Agreement in place, each side, through their attorney's, will begin establishing...
All the Details of the Divorce: The Discovery Process
This is to uncover all assets and liabilities, and dive into custody, grounds, fault issues as well.
Forms that we used in our discovery process for the child support modification case were: Interrogatories and Requests for Production. During our trial, there were also depositions taken.
Note: If your soon to be ex is a business owner, make sure to see all the financial records of the business. I know that a lot of feathers will be ruffled over what I'm going to say, but I have never met a business owner going through divorce who did not hide or try to hide certain assets and income. If you are divorcing a business owner or entrepreneur, hire a financial expert (accountant, investigator) as part of your team. They know what to look for.
"The most common types of assets hidden are cash, bonds, mutual funds, cash value in insurance policies and variable annuities, stocks, travelers' checks, Series EE savings bonds, and bearer municipal bonds." 4
Hidden assets are usually transferred to a third party or hidden in a business.
You don't need to be a millionaire for this to happen.
There are claims that over 7 million Americans are hiding money or debts from their spouses. 5
And that's before divorce.
My ex, Mr. Ex, hid about $70,000 a year in income in a business he closed and reopened under his G'friend's name.
Finding this income doubled our child support payments.
I would even go so far as to say that if your spouse is initiating the divorce and they are a business owner/entrepreneur, assume there is something funky there until you've proven otherwise.
Divorce is not an overnight decision, they've planned for it - in all ways possible.
And if that is the case, you need to be on top the of the finances going years back.
Also, no matter the case, most men will cry poor when the divorce is imminent.
Mr. Ex, just stopped working (freelance) and sat on unemployment.
An asset that must be considered, that also requires professional advise are retirement plans and programs.
Division of a 401K plan and many pension plans require a Qualified Domestic Relations Order (QDRO).
Make sure you understand the financial ramifications before you sign off on anything.
Once you've got a handle on all the elements surrounding your divorce, you and your partner will negotiate who gets what and does what.
Stay strong, but reasonable.
And once you've reached an agreement, you can proceed to...
Finalizing Your Divorce
Once you've agreed on things, it's really just a matter of going before the Judge so that she/he can sign off on your agreements.
Different states have different terms for the individual documents, but basically you'll have the Judgement for Dissolution, the Parenting Plan, and the Marital Settlement Agreement.
Then that gets filed with your courts.
Then you celebrate, or cry, whichever way you go is OK.
What if my partner and I cannot agree on our divorce?
Then the courts will decide.
It's called trial - and it's EXPENSIVE.
Somehow our legal fees increased exponentially over the course of 5 days (spread over months) of trial. UGH.
Remember, anything you spend in the battle is lost to your and your children's future.
I'm not saying to not fight for what is truly right.
In the hunt, certain fox just get away - that's part of the deal.